eRoam ‘Out of the Box’ Agreement

For the purposes of this Agreement, the parties are:

eRoam Pty Ltd (ACN 609 719 486) of registered office at Level 5, 171 Collins Street, Melbourne 3000 (“eRoam”)

and

The CustomerBeing the company or individual who completes the eRoam order form.

Term – The initial term of the agreement is 90-days. This Agreement comes into force on the Subscription Date and continues until the end of the Subscription Term unless it is renewed in accordance with clause 3.2, or unless terminated earlier in accordance with these terms of this Agreement.

Renewal – After the end of the initial 90-day Subscription Term, the Subscription Term shall automatically renew for additional periods of 90 days from the next (“Renewed Term”)

Termination – The customer may for any reason terminate this Agreement for convenience upon ninety (90) days’ prior written notice to eRoam.

Fees – Subscription Fees are calculated based on the authorised number of users accessing the platform. Subscription fees, per booking fees, additional features and API charges in respect of the SaaS can be found at www.eRoam.com/pricing and will be auto calculated by completing the Pricing Menu. Monthly booking fees are calculated each month based on actual completed bookings and can only be estimated based on average monthly boking data supplied by the customer. For 20 licences and above and for enterprise costings including customisations please contact your local eRoam representative.

Payment – The Customer must pay all sums due in respect of this Agreement by, at the election of eRoam, (i) authorising eRoam to directly debit the bank account or credit card as notified by the Customer; or (ii) making payment to such bank account as notified by eRoam from time to time. In the case of (i) the Customer must sign any documentation eRoam reasonably requires to effect the direct debit.

Acceptance of these terms – By checking this box you acknowledge that you have read this Agreement (which incorporates this Cover Sheet and the Full Terms and Conditions) and agree to all its terms and conditions. By accessing and using the eRoam platform and Services you agree to be bound by this Agreement. If you do not agree to abide by the terms of this Agreement, you are not authorized to access or use the platform and Services.

Contacting us – If you have any questions regarding this Agreement, we encourage you to contact us using the details below: support.eroam.com

This document was last updated on September 6, 2022

By subscribing to the SaaS (out of the Box) or placing an order for any upgrades, additional APIs, Customisation or Consultancy Services, the Customer agrees that it will be bound by and subject to these terms and conditions. Unless otherwise agreed in writing by eRoam, these terms and conditions will take precedence over any terms and conditions sought to be imposed by the Customer.

1. DEFINITIONS & INTERPRETATION

“Authorised Users” means those employees, of the Customer who are authorised by the Customer to access and use the SaaS in accordance with the terms of this Agreement and provided they are accessing and using the SaaS exclusively on the Customer’s behalf for the Customer’s Business;

“Customer” means the person or entity subscribing to the SaaS;

“Documentation” means the documentation made available to the Customer by eRoam via eRoam’s web address or other electronic platform as notified to the Customer from time to time which sets out the user instructions for the Travel Software;

“Existing Materials” means any confidential or proprietary materials, including but not limited to trademarks, software and documentation in which the Customer or eRoam as the case may be has a pre-existing Intellectual Property Rights;

“Fees” the Subscription Fees, per booking fee, additional features and API charges, training and any Customisation Fees and Consultancy Fees;

“Hosting” means the hosting services to be provided by eRoam to the Customer during the Term in respect of the Travel Software;

“Intellectual Property Rights” any and all intellectual property rights of any nature, whether registered, registerable or otherwise, including without limitation patents, utility models, trade marks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other intellectual property rights that subsist in computer software, computer programs, websites, documents, information and techniques;

“Pricing Page” the webpage published at eroam.com/pricing which specifies various subscription options to subscribe to the SaaS and corresponding Subscription Fees; This extends to the pricing page completed by the customer to indicate any additional features or APIs selected from the eRoam menu that might include a setup fee and annual renewal fee, or percentage of revenue fee as agreed.

“SaaS / Out of the Box” means the services and features for the provision of access to use the Travel Software as a service, including Support and Maintenance and Hosting in accordance with the terms and conditions of this Agreement and as more particularly described in the pricing page and or any Financial Proposal and Service Level Agreement;

“Subscription Fees” means the subscription fees, per booking fee and any other fees payable to access and use the SaaS dependent on the subscription option as specified on the Pricing Page;

“Subscription Term” a period of 3 months from the Subscription Date as may be extended in accordance with the provisions of clause 3;

“Travel Software” the platform, dashboard and associated marketplace that enables users to create and fulfil travel itineraries, including via connecting to third parties via application programming interfaces or other similar connections; and any error corrections, updates and upgrades that eRoam may provide or perform with respect to the Travel Software, as well as any other support services provided to the Customer under this Agreement.

2. SaaS

2.1 Access to SaaS. In consideration of payment by the Customer of the Fees and the Customer agreeing to abide by the terms of this Agreement, eRoam will make the SaaS available to the Customer and Authorised Users from the Go Live date for the Subscription Term.

2.2. User Limitations. Limitations on the number of Authorised Users and other limitations on the use of the SaaS are depending on the subscription option chosen by the Customer as specified on the Pricing Page. The Customer must (and must ensure that each Authorised User) abide by the terms of this Agreement. The Customer grants eRoam the right to audit the Customer’s use of the SaaS to confirm that the Customer’s (and each Authorised User’s) use does not breach the terms and conditions of this Agreement.

2.3. Additional Users. The Customer may add additional Authorised Users to its Subscription by making a written request to eRoam. Additional Subscription Fees will be payable in respect of Additional Users at the rates specified on the Pricing Page from time to time and dependent on the Customer’s subscription option.

2.4. Support and Maintenance. To access eRoam support, simply go to https://support.eroam.com and choose either ‘Technical Support’ or Report a bug’. If you haven’t already done so, you will be asked to register. Choose Technical support if you require help doing something or if you have a question. Choose Report a bug if something doesn’t work as it should.

2.5. Issue severity, examples and response times

High Resolution time = 1 business day where possible.
All or significant functionality unavailable causing a significant operational impact

Medium Resolution time = 3 business days where possible
Significant functionality unavailable, but interim workaround is available

Low Resolution time = 14 business days where possible
Certain aspects of functionality are unavailable, no operational impact but inconvenient

Support desk business hours are Mon~Fri 09:30 to 21:30 (IST). The support desk is notat time of writing monitored on Saturday and Sunday, however you may lodge tickets any time.

3. TERM

3.1. Term. This Agreement comes into force on the Subscription Date and continues until the end of the Subscription Term unless it is terminated earlier in accordance with these terms of this Agreement.

3.2. Renewal. After the end of the initial Subscription Term, the Subscription Term shall automatically renew for additional periods of 90 days’ (“Renewed Term”)

4. FEES

4.1. Fees. Subscription Fees, per booking fees, additional Features and API charges in respect of the SaaS are as specified on the Pricing Page. Monthly booking fees are calculated each month based on actual completed bookings and can only be estimated based on average monthly booking data supplied by the customer. For 20 licences and above and for enterprise costings including customisations please contact your local eRoam representative.

4.2. Adjustments to Subscription Fees. eRoam may adjust the Subscription Fees by giving at least thirty (30) days’ written notice to the Customer.

4.3. Payment

(a)    The Customer must pay all sums due in respect of this Agreement by, at the election of eRoam, (i) authorising eRoam to directly debit the bank account or credit card as notified by the Customer; or (ii) making payment to such bank account as notified by eRoam from time to time. In the case of (i) the Customer must sign any documentation eRoam reasonably requires to effect the direct debit.

(b)    If the Customer disputes any portion of an invoice, then it must give notice of the disputed portion to eRoam and pay all undisputed portions.

4.4. Failure to make payment. If the Customer fails to pay an undisputed portion of an invoice on or before the due date for payment eRoam has the right to suspend or terminate this Agreement in accordance with clause 13, eRoam may in accordance with clause 11 suspend the delivery of the SaaS until payment in full of such outstanding sums are received.

4.5. Taxes. Unless otherwise specified in the Pricing Page or any Financial Proposal, all fees invoiced are exclusive of taxes. Customer agrees to pay all taxes (including but not limited to sales, use, excise, value added and gross receipts taxes) levied in connection with this Agreement, except for any taxes levied or based on income or property of eRoam.

5. CUSTOMER RESPONSIBILITIES

The Customer:

(a)    must not:
(i) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

(1) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Travel Software and/or Documentation (as applicable) in any form or media or by any means; or

(2) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Travel Software; or

(ii) access all or any part of the SaaS and Documentation in order to build a product or service which competes with the SaaS and/or the Documentation;

(iii) use the Travel Software for any purpose other than for the usual operation of the Customer’s Business; or

(iv) license, sell, resell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercialise, or make the SaaS and/or Documentation available to any third party except the Authorised Users;

(b)    must:

(i) obtain and shall maintain all necessary licences, consents, and permissions necessary for eRoam, its contractors and agents to perform their obligations under this Agreement;

(ii) ensure that its network and systems comply with the relevant specifications provided by eRoam from time to time; and

(iii) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the eRoam’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the network connections or telecommunications links or caused by the internet.

6. WARRANTIES

6.1. eRoam Warranties. eRoam represents and warrants to the Customer that:

(c) the SaaS and the Deliverables will conform in all material respects to the descriptions and standards set out in the Documentation, and any other specifications agreed to in writing by the parties;

(d) the execution and performance by eRoam of this Agreement does not and will not violate or conflict with or result in a breach of:

(i) any of the terms, conditions, duties or obligations to which eRoam is bound to any third party; or

(ii) any other rights of any third party

(e) eRoam is the lawful owner or licensee of any software or programs used in the SaaS, provided the Customer acknowledges and agrees that:

(i) eRoam may as part of the SaaS and at the request of the Customer connect to third party software or systems using application programming interfaces or other similar connections; and

(ii) such third-party software or systems, and the application programming interfaces in respect of them, will not be considered software or programs used in the SaaS for the purpose of this warranty; and

(f) subject to clause 8.1(g), the Customer’s use of the SaaS in the manner permitted under this Agreement will not violate or infringe upon the intellectual property rights of any third parties.

6.2. Customer warranties. The Customer represents and warrants to eRoam that:

(a)    the execution and performance by the Customer of this Agreement does not and will not violate or conflict with or result in a breach of:

(iii) any of the terms, conditions, duties or obligations to which the Customer is bound to any third party; or

(iv) any other rights of any third party; and

(b)    it has all necessary corporate power and authority to enter into this Agreement and to perform its obligations hereunder and thereunder, and the execution and delivery of this Agreement and the entry into this Agreement has been duly authorised by all necessary corporate actions.

6.3. Warranty Limitation. The warranty at Clause 8.1(h) will not apply if: (a) the Travel Software and/or the SaaS is not used in accordance with this Agreement or the Documentation; or (b) the Travel Software and/or the SaaS or any part thereof have been modified by any entity other than eRoam.

7. INTELLECTUAL PROPERTY RIGHTS

7.1. Intellectual Property Rights in Deliverables. Without limiting the generality of clause 5.3., the Customer agrees that all Intellectual Property Rights in Deliverables will on their creation or development become the sole property of eRoam and its assigns, unless otherwise specified in the Agreement. eRoam grants the Customer a non-exclusive, worldwide, revocable right to use the Deliverables, but only to the extent required to utilise the SaaS.

7.2. eRoam’s existing Intellectual Property. To the extent that Existing Materials are incorporated into the SaaS or the Deliverables, eRoam grants to the Customer a non-exclusive, worldwide, revocable, right to use such Existing Materials and to use and display such Existing Materials, but only to the extent required to utilise the SaaS. Nothing in this Agreement operates to transfer any Intellectual Property Rights in any of eRoam’s Existing Materials (or any Intellectual Property Rights created by or otherwise owned by eRoam independent of this Agreement) to the Customer.

7.3 Customer’s existing Intellectual Property. To the extent that Existing Materials are incorporated into Deliverables(s), the Customer grants to eRoam a non-exclusive, irrevocable, royalty-free, perpetual right to use modify and prepare derivative works of such Existing Materials and to use and display such Existing Materials but only to the extent required in the provision of the Deliverables and/or the SaaS in accordance with the ownership rights granted in this Agreement.

8. THIRD PARTY PROVIDERS

8.1. The Customer acknowledges that the SaaS may (whether by way of application programming interfaces or otherwise) enable or assist it to access the website content of, and correspond with, third parties via third-party websites and/or have access to third party systems and that it does so solely at its own risk.

8.2. eRoam makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party websites or systems, or any transactions completed, and any contract entered into by the Customer, with any such third party.

8.3. Any contract entered into and any transaction completed via any third-party website or system for products or services is between the Customer and the relevant third party, and not eRoam. eRoam does not endorse or approve any third-party website or system nor the content of any of the third-party website or system nor any product or service made available for purchase through a third party website or system made available via the SaaS.

9. NON-CONFORMANCE

If the SaaS does not conform with the Documentation or the terms of this Agreement in any material respect, eRoam will, at its expense, use reasonable endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of this Agreement relating to non-conformance to the provision of the SaaS. Notwithstanding the foregoing, eRoam:

(a)    does not warrant that the Customer’s use of the SaaS will be uninterrupted or error-free; nor that the SaaS, Documentation and/or the information obtained by the Customer through the SaaS will meet the Customer’s requirements; and

(b)    is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the SaaS and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

10. SUSPENSION

Without prejudice to any other rights of eRoam under this Agreement, eRoam may suspend the Customer’s (or any Authorised User’s) right to access or use any part of the SaaS immediately upon notice to the Customer and without any liability to the Customer if eRoam determines that the Customer’s or any of the Authorised User’s use of the SaaS:

(a)    poses a security risk to the SaaS or any third party;

(b)    may adversely impact the SaaS or the systems or content of any other customer of eRoam;

(c)    may subject eRoam or any third party to liability;

(d)    if the Customer (or any Authorised User) is in breach of the terms of the Agreement, including the Customer’s obligation to pay the Fees under this Agreement for more than seven (7) days; or

(e)    the Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganisation, liquidation, dissolution or similar proceeding.

11. LIABILITY

11.1. This clause 12 sets out the entire financial liability of eRoam (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer in respect of: (i) any breach of this Agreement, including a warranty; (ii) any use made by the Customer of the SaaS; and (iii) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

11.2. Except as expressly and specifically provided in this Agreement:

(a)    the Customer assumes sole responsibility for results obtained from the use of the Travel Software and/or the SaaS (or any Customisation, Future Customisation or Consultancy Services), and for conclusions drawn from such use;

(b)    eRoam has no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to eRoam by the Customer in connection, or any actions taken by eRoam at the Customer’s direction; and

(c)    all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.

11.3. Nothing in this Agreement excludes or limits the liability of eRoam for any other liability which cannot lawfully be excluded or limited.

11.4. eRoam will not be liable whether in contract, tort (including for negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill or similar losses, or pure economic loss, loss of data or for any indirect or consequential loss, costs, damages, charges or expenses however arising.

11.5. eRoam’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, in connection with the performance non-performance of this Agreement is limited to: (i) in respect of the SaaS, the Fees paid or payable by the Customer during the three (3) months immediately preceding the date on which by the claim arose; or (ii) for any Customisation, Future Customisation or Consultancy Services, the relevant fees paid for those services.

12. TERMINATION

12.1. Termination for Convenience. The Customer may terminate this Agreement for convenience upon thirty (90) days’ prior written notice to eRoam.

12.2. Termination for Cause. If either party materially breaches this Agreement and such default is not cured within seven (7) days after written notice is given to the defaulting party specifying the default, then the party not in default may, by giving written notice thereof to the defaulting party, terminate this Agreement in its entirety as of a date specified in such notice of termination.

12.3. Termination for Insolvency or Bankruptcy. Either party may immediately terminate this Agreement by giving written notice to the other party in the event of (i) the liquidation or insolvency of the other party,(ii) the appointment of a receiver or similar officer for the other party, (iii) an assignment by the other party for the benefit of all or substantially all of its creditors, or (iv) entry by the other party into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations.

12.4. Rights upon Termination. Upon the termination of this Agreement:

(a)    each party shall promptly return to the other all data, materials and other properties of the other held by it;

(b)    the Customer must immediately pay any Fees owing to eRoam pursuant to and in accordance with this Agreement up to the effective date of termination; and

(c)    the Customer’s (and each Authorised User’s) access to the SaaS and its right to use the Travel Service will immediately cease.

13. CONFIDENTIAL INFORMATION

13.1 Meaning of Confidential Information.“Confidential Information” means all confidential or proprietary information belonging to either party hereto and disclosed to the other party including, but not limited to, strategic, technical, business, operational, financial and marketing information, personally identifiable subscriber or customer information, and the existence, terms and conditions of this Agreement. Confidential Information does not include any information that (a) is or becomes generally available to the public without breach of this Agreement through no fault of the receiving party,

13.2 Non-Disclosure. Each party agrees to (a) hold in strict confidence all Confidential Information of the other party, (b) use the Confidential Information solely to perform or to exercise its rights under this Agreement, and (c) not to transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any person or entity other than to the directors, officers, employees, agents, consultants, accountants, auditors and legal and financial advisors of such party as need to know such Confidential Information, who are under confidentiality obligations at least as restrictive as the terms in this Agreement, and whose handling and treatment of such Confidential Information in accordance with this Agreement is the full responsibility of such party. Neither party will use (except as expressly provided in this Agreement) or disclose Confidential Information of the other party without the prior written consent of the disclosing party. Each party shall use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than reasonable care.

13.3. Permitted Disclosure. The receiving party may disclose the Confidential Information of the other in response to a valid court order, law, rule, regulation (including without limitation any securities exchange regulation), or other governmental action provided that (a) the disclosing party is notified in writing prior to disclosure of the information, and (b) the receiving party assists the disclosing party, at the disclosing party’s expense, in any attempt by the other to limit or prevent the disclosure of the Confidential Information.

13.4. Equitable Relief. Each party agrees that the other party may have no adequate remedy at law if there is a breach or threatened breach of this Section and, accordingly, that either party will be entitled to seek (in addition to any legal or equitable remedies available to such party) injunctive or other equitable relief to prevent or remedy such breach.

13.5. Ownership of Confidential Information. The Parties agree that the Confidential Information of the other party is, and will remain, the property of the other party hereto. The receiving party obtains no right, title, interest, or license in or to any of the Confidential Information of the disclosing party except for the rights set forth in this Agreement.

GENERAL

(a)    Assignment. The Customer must not assign this Agreement or any of its rights, duties or obligations hereunder, without the prior written consent of eRoam.

(b)    Governing Law. The parties expressly agree that these terms are governed by and construed in accordance with the laws of the State of Victoria and the parties submit to the non-exclusive jurisdiction of the courts of State of Victoria, Australia.

(c)    Force Majeure. Neither party shall be liable for any losses arising out of the delay or interruption of its performance of obligations under this Agreement due to any act of God, act of governmental authority, act of public enemy, terrorism, war (whether or not declared), pandemic, epidemic, riot, flood, civil commotion, insurrection, or any other material event beyond the reasonable control of the party delayed (collectively, “Force Majeure” events). The party not claiming protection from a Force Majeure event may cancel or terminate, without penalty, any Work Schedule and Financial Proposal (Addendum 1) for which a Force Majeure event has delayed performance by more than thirty (30) days.

(d)    Liability. An obligation of two or more persons binds them separately and together.

(e)    Non Waiver. No term or provision hereof will be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party claimed to have waived or consented.

(f)    Severability. In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement will remain valid and enforceable according to its terms.

(g)    Headings. The paragraph headings in this Agreement are for convenience only; they form no part of this Agreement and will not affect the interpretation of this Agreement.

(h)    Survival. The terms and conditions of this Agreement regarding confidentiality, indemnification, payment and all others that by their sense and context are intended to survive the execution, delivery, performance, termination or expiration of this Agreement survive and continue in effect.

(i)    Non Exclusivity. Nothing herein will be deemed to preclude the Customer from retaining the services of other persons or entities undertaking the same or similar services as those undertaken by eRoam under this Agreement. Similarly, eRoam may provide similar services and sell goods and services to any other party or parties on terms and conditions established and determined by eRoam in its discretion from time to time.

(j)    Publicity. Except as required by law, the Customer agrees that it will not, without prior written consent of the eRoam, use in advertising, publicity or otherwise the name of eRoam, or any affiliate of such party, or refer to the existence of this Agreement in press releases, advertising or materials. The Customer grants to eRoam a non-exclusive worldwide, royalty free licence for so long as the Customer remains a customer of eRoam to use the name and logo of the Customer in its directory of users and to advertise and publicise the SaaS and any other service or product that eRoam or its affiliates may offer for sale.

(k)    Notices Any notice or other communication hereunder must be in writing addressed to the other party at the addresses first noted above and will be deemed delivered either upon hand delivery against receipt or upon mailing by certified mail, return receipt requested or by telecopy or email with evidence of delivery.

(l)    Relationship. In the performance of the Services, eRoam will act solely as an independent contractor, and nothing herein will at any time be construed to create the relationship of employer and employee, partnership, principal and agent, or joint venturers as between the Customer and eRoam resources.

(m)    Entire Agreement. This Agreement constitutes the entire agreement between eRoam and the Customer in relation to this subject matter, and supersedes all prior agreements, representations, proposals, discussions and communications, whether oral or in writing. This Agreement may only be modified by an instrument in writing signed by an officer of both Parties.